Summary
eliminating from coverage property damage to work, work product and damages claimed for correcting work based upon policy exclusions
Summary of this case from Jakobson Shipyard v. Aetna Cas. and Sur.Opinion
November 15, 1989
Appeal from the Supreme Court, Jefferson County, Inglehart, J.
Present — Callahan, J.P., Denman, Pine, Balio and Lawton, JJ.
Judgment unanimously reversed on the law with costs and plaintiff's motion and defendant's cross motion denied. Memorandum: Supreme Court erred in granting plaintiff's motion for summary judgment and directing that defendant insurance company defend plaintiff on the counterclaims in the action entitled Softwater by George, Inc. v Mark Bradley. Exclusions (n), (o), and (p) in defendant's policy exclude from coverage property damage to the insured's work, work product, and damages claimed for the costs of correcting the work (see, Zandri Constr. Co. v Firemen's Ins. Co., 81 A.D.2d 106, affd sub nom. Zandri Constr. Co. v Stanley H. Calkins, Inc., 54 N.Y.2d 999). Thus, if the counterclaims seek to recover the costs of correcting the work, they are excluded from coverage. Because questions of fact exist whether the first eight property damage counterclaims entail solely the correction of plaintiff's work, summary judgment is unavailable. With regard to the ninth counterclaim, it sufficiently alleges a cause of action within the scope of the policy's coverage, thus triggering the carrier's duty to defend. It was error, however, for Supreme Court to rule as a matter of law that plaintiff provided defendant with notice of the occurrence "`as soon as practicable'". Summary judgment as to all the counterclaims is therefore precluded because a question of fact exists whether notice of the occurrence from which they arose was given "`as soon as practicable'" (see, Olsker v Niagara Frontier Transp. Auth., 103 A.D.2d 1011; Allstate Ins. Co. v Moon, 89 A.D.2d 804; Hartford Fire Ins. Co. v Masternak, 55 A.D.2d 472; MVAIC v United States Liab. Ins. Co., 33 A.D.2d 902; Bonavita v Enright, 30 A.D.2d 1027; Lauritano v American Fid. Fire Ins. Co., 3 A.D.2d 564, affd 4 N.Y.2d 1028). Plaintiff's motion and defendant's cross motion for summary judgment are therefore denied.